regulation 12(3) did not have the effect of extending the amount or duration of the claimant's award beyond the term for which it was awarded even without the words "… until such time as his entitlement to that benefit is reviewed under section … 30 of the Social Security Administration Act 1992". There was no anomaly in a situation where the protection of regulation 12(3) ceased on expiry of a fixed term award but continued indefinitely in the case of a life award because in both cases, the protection continued as long as it was needed to preserve an accrued entitlement but no longer. (Gibson LJ's remarks in ex parte B at page 1706 confirmed);
the words "entitlement to benefit" in "shall continue until … his entitlement to benefit is reviewed" referred to that benefit which the claimant was receiving immediately before the amending
the preservation of accrued rights did not justify their enlargement by disapplying regulation 4 to new and repeat claims and a decision on a review could properly be equated with a decision on a repeat claim.
Mr. A. Nicol QC and Mr. S. Cox (instructed by Messrs. Luqmani Thomson and Partners) appeared on behalf of the Appellant.
Mr. R. Drabble QC (instructed by the Solicitor to the Department of Social Security) appeared on behalf of the Respondent.
My Lords,
My Lords,
My Lords,
My Lords,
The question for decision is whether the principal regulations apply in their unamended form to a claim to disability living allowance made after the date on which the amending regulations came into force by a claimant who was in receipt of the allowance immediately before that date under an award for a fixed term which has since expired.
The argument has an attractive simplicity, and for the most part is not disputed. The Department accepts that the appellant satisfies the precondition and that there has been no review of her entitlement to benefit. But the logic of the appellant's argument depends on the insertion of the words "as regards her" in proposition (ii) which do not appear in the regulation itself. That some words need to be implied is not in doubt; but the Department does not accept that "as regards her" represent the appropriate reading of the regulation.
This passage has been criticised on the ground that transitional relief comes in so many different forms that it is impossible to generalise. But there is no need to do so. The heading to regulation 12 and the terms of the precondition are sufficient to identify the purpose of the regulation as the saving (and not the enlargement) of accrued rights. In my opinion there is no anomaly (not merely no serious anomaly) that the protection of regulation 12(3) ceases on the expiry of a fixed term award but continues indefinitely in the case of an award for life. In both cases it continues as long as it is needed to preserve an accrued entitlement but no longer.
For my part I think that the draftsman's thinking was probably the other way round. The preservation of accrued rights did not justify their enlargement by disapplying regulation 4 to new and repeat claims, and a decision on a review could properly be equated with a decision on a repeat claim.
My Lords,